Patrick Collins, Inc. v. Doe
Filing
8
ORDER granting Motion to Quash in part and Severing Doe defendants 2-23 5 . Signed by District Judge George Caram Steeh (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PATRICK COLLINS, INC.,
Plaintiff,
Case No. 11-cv-15231
HON. GEORGE CARAM STEEH
vs.
JOHN DOES 1-23,
Defendants.
_____________________________/
ORDER GRANTING MOTION TO QUASH IN PART AND SEVERING DOE
DEFENDANTS 2-23
I.
Introduction
This case is one among many cases filed nationwide by copyright owners1 alleging
that John Doe defendants downloaded their films without authorization using a peer-to-peer
(“P2P”) file sharing network known as BitTorrent. Plaintiff, Patrick Collins, Inc., the owner
of United States Copyright Registration Number PA0001745322, for the motion picture
1
Plaintiff itself has filed a number of nearly identical lawsuits against Doe
defendants in federal district courts across the country. See Patrick Collins, Inc. v. John
Does 1-54, No. 11-cv-1602-PHX-GMS, 2012 U.S. Dist. LEXIS 36232 (D. Ariz. March
19, 2012); Patrick Collins, Inc. v. Does 1-58, No. 3:11-cv-531-JAG, 2011 U.S. Dist.
LEXIS 120235 (E.D. Va. Oct. 5, 2011); Patrick Collins, Inc. v. Does 1-2,590, No. C-112766, 2011 U.S. Dist. LEXIS 140913 (N.D. Cal. Dec. 7, 2011); Patrick Collins, Inc. v.
John Does 1-33, No. 11-cv-02163, 2012 WL 415424 (D. Colo. Feb. 8, 2012); Patrick
Collins, Inc v. Does 1-22, No. 11-cv-01772, 2011 WL 5439005 (D. Md. Nov. 8, 2011).
In fact, on the same date that plaintiff filed the present action, plaintiff also filed
three similar cases involving copyright infringement of other works in this district. See
Patrick Collins, Inc. v. Does 1-21, No. 2:11-cv-15232-DPH; Patrick Collins, Inc. v. Does
1-30, No. 2:11-cv-15236-PDB; Patrick Collins, Inc. v. Does 1-27, No. 4:11-cv-15237MAG.
-1-
“Gangbanged” (the “Work”), filed the instant action alleging claims of direct and indirect
copyright infringement under the Copyright Act, 17 U.S.C. § 101 et seq. against twentythree John Doe defendants.
On December 1, 2011, the magistrate judge assigned to this matter entered an order
allowing plaintiff to serve third party subpoenas on defendants’ Internet Service Providers
(“ISP”) prior to a Rule 26(f) conference. Plaintiff has no identifying information concerning
the Doe defendants other than their IP addresses, a unique numerical identifier that is
automatically assigned to an internet user by the user’s ISP. Defendant John Doe’s ISP,
Comcast, was served with a Rule 45 subpoena and defendant John Doe now moves to
quash or modify subpoena and to sever.
II.
Factual Background
BitTorrent is one of the most common peer-to-peer file sharing protocols used for
distributing large amounts of data. Its popularity stems from its ability to distribute a large
file without creating a heavy load on the source computer and network. In other words, to
reduce the load on the source computer, rather than downloading a file from a single
source computer, the BitTorrent protocol allows users to join a “swarm” of computers and
upload and download files from each other.
According to plaintiff the Doe defendants installed a BitTorrent client onto his or her
computer. The BitTorrent Client is a software program that implements the BitTorrent
protocol. Once installed, the BitTorrent Client serves as the user’s interface during the
process of uploading and downloading data using the BitTorrent protocol. A BitTorrent user
who wants to upload a new file to share with others, known as the “initial seeder” starts by
creating a “torrent” descriptor file using the BitTorrent Client installed on the computer. The
-2-
BitTorrent Client takes the target computer file, the “initial seed,” here the copyrighted
Work, and divides it into identically sized groups of bits known as “pieces.” The Client then
gives each one of the Work’s pieces a random and unique alphanumeric identifier known
as a “hash” and records these hash identifiers in the “torrent” file.
The torrent file also has an “announce” section which specifies the URL (Uniform
Resource Locator) of a “tracker,” which directs a peer user’s computer to other peer users’
computers that have particular pieces of the Work and facilitates the exchange of data
among the computers.
The BitTorrent protocol causes the initial seed’s computer to send different pieces
of the Work to other peers seeking to download the Work. Once a peer receives a piece
of the Work, the protocol enables transmission of this piece to other peers. In this way, all
of the seeders work together in what is known as a “swarm.”
Plaintiff’s investigators, IPP Limited, were tasked with identifying the IP addresses
that are using the BitTorrent protocol to reproduce the Work. IPP Limited used forensic
software named International IPTracker v1.2.1. This software enabled IPP Limited to
determine that the IP addresses associated with the Doe defendants (identified on exhibit
A to the complaint) connected to the investigative server in order to transmit a full copy, or
portion
thereof,
of
a
digital
media
file
identified
by
hash
value
of
8F7C963137369F5A874A32E468C1D432DAFOB859. Therefore, plaintiff alleges that
each Doe defendant copied a piece of plaintiff’s Work and were part of the same series of
transactions because they all were part of the same “swarm” of peer users.
-3-
III.
LAW & ANALYSIS
A.
Permissive Joinder
Federal Rule of Civil Procedure 20(a)(2) allows the joinder of defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence
or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the
action.
Fed. R. Civ. P. 20(a)(2). “The purpose of Rule 20 is to promote efficiency, as joining all
interested parties in one proceeding encourages resolution of the dispute, avoids
overlapping litigation, and ensures that single judgment binds all interested parties, thereby
avoiding inconsistent outcomes and multiple litigation.” Nilssen v. Universal Lightning
Technologies, Inc., No.3:04-0080, 2005 WL 1971936, *4 (M.D. Tenn. 2005). Therefore,
“the impulse is toward entertaining the broadest possible scope of action consistent with
fairness to the parties; and joinder of claims, parties, and remedies is strongly encouraged.”
Call of the Wild Movie v. Does 1-1,062, 770 F. Supp. 2d 332, 339 (D.D.C. 2011) (quoting
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1996)). The remedy for improper
joinder is severance under Rule 21 of the Federal Rules of Civil Procedure. See Fed. R.
Civ. P. 21. “[I]t is well-settled that parties are misjoined when the preconditions of
permissive joinder set forth in Rule 20(a) have not been satisfied.” Id. at 342.
Defendant Doe argues that this court should quash the subpoenas served upon the
Doe defendants because the plaintiff has improperly joined the putative defendants under
Rule 20(a) of the Federal Rules of Civil Procedure. Defendant Doe maintains that joinder
is improper because the allegations in the complaint, while involving a single Work, involve
-4-
unrelated defendants who allegedly violated the copyright laws at different times and
locations, sometimes using different services and perhaps subject to different defenses.
Further, defendant claims that the nature of BitTorrent does not support plaintiff’s claim that
all John Doe IP addresses acted together for the entire relevant time period.
Defendant Doe relies on case law addressing alleged copyright infringement using
P2P file sharing protocols that predate BitTorrent technology where the courts found that
the use of the same P2P file sharing network by a group of Doe defendants to commit
copyright infringement is insufficient to sustain permissive joinder. See IO Group, Inc. v.
Does 1-19, No. C-10-03851-SI, 2010 U.S. Dist. LEXIS 133717 (N.D. Cal. Dec. 7, 2010);
Interscope Records v. Does 1-25, No. 6:04-cv-197-Orl-22DAB, 2004 U.S. Dist. LEXIS
27782 (M.D. Fl. Apr. 1, 2004); Artista Records v. Does 1-9, No. 07-cv-961, 2008 U.S. Dist.
LEXIS 57734 (S.D. Ohio July 29, 2008); Artista v. Does 1-11, No. 07-cv-2828, 2008 U.S.
Dist. LEXIS 90183 (N.D. Ohio Nov. 3, 2008); LaFace Records, LLC v. Does 1-38, 2008
U.S. Dist. LEXIS 14544 (E.D.N.C. Feb. 27, 2008); Elektra Entertainment Group, Inc. v.
Does 1-9, No. 04-civ-2289, 2004 U.S. Dist. LEXIS 23560 (S.D.N.Y. Sept. 7, 2004).
Conversely plaintiff argues, similar to other plaintiffs filing BitTorrent copyright
infringement cases across the country, that joinder of the twenty-three Doe defendants is
proper because each Doe defendant was part of the same “swarm” simultaneously
uploading and downloading plaintiff’s Work. Plaintiff urges the court to adopt the decisions
of some district courts that have found that Doe defendants who have participated in the
same swarm to download a copyrighted work may properly be joined under Rule 20(a)(2),
despite the authority that reaches a contrary conclusion with respect to earlier P2P
technologies. See Call of the Wild Movie, 770 F. Supp. 2d at 343 (concluding that the
-5-
plaintiffs met requirements of permissive joinder and that severance would “debilitate the
plaintiffs’ efforts to protect their copyrighted materials . . . .”); Digital Sin, Inc. v. Does 1-176,
No. 12-cv-00126, 2012 WL 263491, *4 (S.D.N.Y. Jan. 30, 2012); see also, Voltage
Pictures, LLC v. Vazquez, No. 10-00873, 2011 WL 5006942 (D.D.C. Oct. 20, 2011) (finding
that joinder was proper and that the merits of the putative defendants defenses were not
properly before the court until being named as a defendant); Patrick Collins, Inc. v. John
Does 1-33, No. 11-cv-02163, 2012 WL 415424, *3 (D. Colo. Feb. 8, 2012) (concluding that
joinder was proper because “joinder of the Doe Defendants ‘facilitates jurisdictional
discovery and expedites the process of obtaining identifying information, [a] prerequisite
to reaching the merits of plaintiff’s claims.”); Liberty Media Holdings, LLC v. Does 1-62, No.
11-cv-575-MMA, 2011 WL 1869923, *5 (S.D. Cal. May 12, 2011) (“In this case, the
complaint sufficiently alleges that defendants are properly joined due to the use of
BitTorrent, which necessarily requires each user to be an uploader as well as a
downloader.”); Patrick Collins v. Inc v. Does 1-22, No. 11-cv-01772, 2011 WL 5439005, *23 (D. Md. Nov. 8, 2011); Patrick Collins v. Does 1-2590, No. C-11-2766, 2011 WL 4407172,
*5 (N.D. Cal. Sept. 22, 2011).
Based on a review of the complaint, motions and briefing filed in the instant action,
and the decisions analyzing whether joinder of unnamed Doe defendants utilizing
BitTorrent technology in one action is permitted under Rule 20(a), the court concludes that
simply alleging the use of BitTorrent technology, like earlier P2P file sharing protocols, does
not comport with the requirements under Rule 20(a) for permissive joinder. Here, the
alleged activity involves 23 different defendants, 4 different ISPs, and nearly three months
of activity (7/15/2011 through 10/11/2011). This is insufficient to establish that the Doe
-6-
defendants were involved in the same transaction or series of transactions.
In the instant matter, the allegations reveal that each of the computers using the IP
addresses (identified in Exhibit A to the complaint) connected to the investigative server in
order to download a piece of the Work, identified by the hash value of
8F7C963137369FA874A32E468C1D432DAF0B859. Each of the IP addresses connected
to the investigative server at different times and dates to download a piece of the Work and
there is no allegation that any of the computers associated with the IP addresses
downloaded or uploaded pieces of the Work with each other. That plaintiff has provided
evidence that each of the defendants connected to the investigative server to download a
piece of the Work does not show that each of the IP addresses acted in concert with all the
other addresses in the swarm. The nearly three month time span covering this activity
suggests the likely possibility that there was never common activity linking the 23
addresses in this matter. See Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d
1150, 1163 (N.D. Cal. 2011); K-Beech, Inc. v. John Does 1-41, No. V-11-46, 2012 U.S.
Dist. LEXIS 31803, *10 (S.D. Tex. March 8, 2012) (“While [plaintiff] provides the precise
date, hour, minute and second at which it alleges that each Doe Defendant was observed
to be sharing the torrent of the copyrighted work, [plaintiff] does not indicate how long each
Doe Defendant was in the swarm or if any of the Doe Defendants were part of the swarm
contemporaneously.”) In Hard Drive Productions, the court held that
[E]ven if the IP addresses at issue in this motion all came from a single
swarm, there is no evidence to suggest that each of the addresses “acted in
concert” with all of the others. In fact, the nearly six-week span covering the
activity associated with each of the addresses calls into question whether
there was ever common activity linking the 51 addresses in this case.
809 F. Supp. 2d at 1163; see also, Patrick Collins, Inc. v. John Does 1-58, No. 3:11cv-531-7-
JAG, 2011 U.S. Dist. LEXIS 120235, *5-6 (E.D. Va. Oct. 5, 2011); Boy Racer, Inc. v. Does
1-98, No. C-11-02536-JCS, 2011 U.S. Dist. LEXIS 11930, *2 (N.D. Cal. Oct. 14, 2011).
In addition, plaintiff’s complaint is devoid of any information concerning the number
of users in the swarm involved, which easily can reach numbers in the hundreds of
thousands. The nature of the BitTorrent protocol enables its users to share files in a
relatively quick time frame, ranging anywhere from fifteen minutes to a few hours. The
absence of information concerning the number of total users in the swarm, coupled with the
BitTorrent protocol’s ability to quickly share files further demonstrates that it is implausible
that any of the Doe defendants were simultaneously sharing pieces of plaintiff’s Work. See
Hard Drive Prods., Inc. 809 F. Supp. 2d at 1163 (“In this age of instant digital gratification,
it is difficult to imagine, let alone believe, that an alleged infringer of the copyrighted work
would patiently wait six weeks to collect the bits of the work necessary to watch the work
as a whole.”) Thus, the absence of any allegations that a particular user downloaded a
piece of the Work from, or uploaded a piece of the Work to, another user in the swarm
highlights the absence of any reason to conclude that the Doe defendants were engaged
in the same transaction or series of transactions. See Patrick Collins, Inc. v. John Does
1-54, 2012 U.S. Dist. LEXIS 36232, *14 (D. Ariz. March 19, 2012) (“[A]bsent allegations
that any particular user copied a piece of the file from or to any other particular user, one
could not conclude that the users ‘were engaged in the single transaction or series of
closely-related transactions recognized under Rule 20.”). In short, the connection plausibly
alleged among defendants named in this case is nothing more than alleged in the prior P2P
file sharing cases.
Based on plaintiff’s failure to sufficiently allege that the Doe defendants engaged in
-8-
the same series of transactions with respect to their alleged infringing conduct, the court
concludes that the Doe defendants have been improperly joined and severs Doe
defendants 2-23 from this action under Rule 21. The court rejects plaintiff’s argument that
allowing severance of the Doe defendants will prevent copyright holders from being able
to protect their ownership rights. The court’s decision does not prevent plaintiff from
bringing separate actions against each individual Doe defendant. See Lightspeed v. Does
1-1000, No. 10-C-5604, 2011 U.S. Dist. LEXIS 35392, * 6 (N.D. Ill. March 31, 2011)
(rejecting the plaintiff’s argument that joinder at this stage of the litigation serves the
interests of judicial economy); see also, K-Beech, Inc. v. John Does 1-41, 2012 U.S. Dist.
LEXIS, at *14-15 (rejecting plaintiff’s argument that severing the Doe defendants would
prevent plaintiff from being able to enforce its copyright.) That many ISPs do not retain
accurate records which may thwart plaintiff’s efforts to identify significant numbers of
infringing defendants is immaterial to this court’s analysis of the propriety of permissive
joinder under the Federal Rules of Civil Procedure. Likewise, plaintiff’s desire to keep its
litigation costs low also fails to persuade the court that severance is inappropriate. As one
court stated:
Plaintiff’s motive for seeking joinder, therefore, is to keep its own litigation
costs down in hopes that defendants will accept a low initial settlement
demand. However, filing one mass action in order to identify hundreds of
Doe defendants through pre-service discovery and facilitate mass settlement,
is not what the joinder rules were established for.
IO Group, Inc. v. Does 1-435, No. C-10-04382-SI, 2011 U.S. Dist. LEXIS 14123, *9 (N.D.
Cal. Feb. 3, 2011). The court also rejects plaintiff’s argument that allowing this case to
proceed with 23 joined defendants is more efficient than filing 23 separate actions. As the
court in Hard Drive Prods., Inc. explained:
-9-
[E]ven though they may be separated by many miles and have nothing in
common other than the use of BitTorrent, each defendant must serve each
other with all pleadings–a significant burden when, as here, many of the
defendants will be appearing pro se and may not be e-filers. Each defendant
would have the right to be at each other defendant’s deposition –creating a
thoroughly unmanageable situation. The courtroom proceedings would, in
effect, require a mini-trial. These burdens completely defeat any supposed
benefit from the joinder of all Does in this case[.]
809 F. Supp. 2d at 1164.
While some district courts have determined that the joinder issue should be
addressed after the ISPs have provided the Doe defendants’ identifying information, the
court disagrees with these decisions. See Voltage Pictures, LLC v. Vazquez, No. 1000873, 2011 WL 5006942, *7 (D.D.C. Oct. 20, 2011); Patrick Collins, Inc. v. John Does 133, No. 11-cv-02163, 2012 WL 415424, *3 (D. Colo. Feb. 8, 2012) (denying without
prejudice motion to sever because joinder did not prejudice any of the Doe defendants who
had not yet been served with a copy of the complaint); Call of the Wild v. Does 1-1,062,
770 F. Supp. 2d at 344. The court agrees with the reasoning in Artista Records, LLC v.
Does 1-11, No. 1:07-cv-2828, 2008 U.S. Dist. LEXIS 90183, *12 (N.D. Ohio Nov. 3, 2008).
While Artista Records involves alleged copyright infringement utilizing P2P protocols prior
to the advent of BitTorrent, this does not change the analysis.
Rule 21 provides that a court, on motion or on its own, may “at any time, on just
terms, add or drop a party” or “sever any claim against a party.” Fed. R. Civ. P. 21. As the
court finds that the Doe defendants have been improperly joined, allowing plaintiff to
proceed with its lawsuit until the Doe defendants have been identified will pervert the
joinder rules. Artista Records, LLC, 2008 U.S. Dist. LEXIS, at *15. “Postponing a decision
on joinder in lawsuits similar to this action results in lost revenue of perhaps millions of
-10-
dollars and only encourages Plaintiffs and other members of the [Recording Association
of America] to join (or misjoin) as many doe defendants as possible.” Id. at *17 (citing Sony
BMG Music Entm’t v. Does 1-5, No. CV 07-2434-SJO (C.D. Cal. Aug. 29, 2007)).
Further, it cannot be ignored that the nature of P2P file sharing infringement cases
inevitably produces varying defenses that require severance. Many courts have recognized
that the ISP may produce identifying information associated with the individual who opened
the account for internet service, rather than the individual who uses the internet connection
for illegal purposes. See K-Beech, Inc. v. John Does 1-41, 2012 U.S. Dist. LEXIS, at *1213. “For example, ‘ISP subscriber John Doe 1 could be an innocent parent whose internet
access was abused by her minor child, while John Doe 2 might share a computer with a
roommate who infringed Plaintiff’s works.’” Id. at *13 (citing Third Degree Films v. Does 13,577, No. C-11-02768-LB, 2011 U.S. Dist. LEXIS 128030, *4 (N.D. Cal. Nov. 4, 2011)).
B.
Rule 45(c)(3)
Defendant Doe moves to quash the subpoenas served upon his ISP, as well as
those served on the other Doe defendants’ ISPs. Under Rule 45(c)(3), this court must
modify or quash a subpoena that: (1) fails to allow a reasonable time to comply, (2)
requires a non-party to travel more than 100 miles from where that person resides, is
employed, or regularly transacts business, (3) requires disclosure of privileged or other
protected matter that is not subject to an exception or waiver, or (4) subjects a person to
undue burden. See Fed. R. Civ. P. 45(c)(3)(A). A court may modify or quash a subpoena
if it requires disclosure of (1) confidential information, (2) an unretained expert’s opinion or
(3) requires a non party to incur substantial expense to travel more than 100 miles to attend
trial. See Fed. R. Civ. P. 45(c)(3)(B).
-11-
Defendant Doe does not argue that any of the factors requiring or permitting this
court to quash the subpoenas apply. He has not asserted that complying with the
subpoenas requires disclosure of confidential or privileged information or is unduly
burdensome. Rather defendant’s argument relies solely on the assertion that defendants
have been improperly joined in this matter. However, the court quashes the subpoenas
served upon Doe defendants 2-23s’ ISPs as those defendants are no longer in this action.
The subpoena served upon Doe defendant 1's ISP remains in effect. Should plaintiff
decide to file separate individual actions against Doe defendants 2-23, plaintiff may move
for leave to file a third party subpoena prior to Rule 26(f) conference in those actions.
IV.
CONCLUSION
For the foregoing reasons, the court GRANTS Defendant John Doe’s Motion to
Quash in part and to Sever [#5]. The court hereby severs and dismisses from this action
Doe defendants 2-23, except Doe defendant 1 associated with the IP address 71.238.74.7
(the first Doe listed on exhibit A to the complaint).
The subpoena served upon Doe
defendant 1's ISP remains in effect. All of the subpoenas seeking discovery regarding Doe
defendants 2-23 are ordered QUASHED. Plaintiff SHALL IMMEDIATELY notify the ISP
recipients of these subpoenas that said subpoenas have been quashed and that the Doe
defendants (except for Doe 1) have been severed from, and are not litigants in this case.
Civil Action 2:11-cv-15231 is hereby assigned to Doe 1 as an individual defendant.
Plaintiff may file individual complaints against Doe defendants 2-23. Such cases will be
-12-
assigned separate civil action numbers.
SO ORDERED.
Dated: March 26, 2012
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 26, 2012, by electronic and/or ordinary mail.
S/Josephine Chaffee
Deputy Clerk
-13-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?